Sunday, May 29, 2016

Marilyn Garrett fully understood why two white prosecutors in Georgia excluded her from the jury being empaneled to try a black teenager in 1987 for capital murder in the home-invasion killing of an elderly white widow. But it took almost 30 years for the judicial system to acknowledge the racial discrimination that was obvious to her at the time. The prosecutors were blocking Garrett (now Whitehead) and other African Americans from serving on the jury, in blatant violation of a then-recent Supreme Court decision to limit racial discrimination in jury selection. The lawyers representing Timothy Foster cited the new decision, Batson v. Kentucky (1986), to the trial judge, but prosecutors Stephen Lanier and Douglas Pullen insisted they had legitimate reasons for using peremptory challenges to get rid of all the black jurors who survived initial screening in the jury selection process. The judge accepted the prosecutors’ claims, and so too did every court to consider the issue until Foster had served on Georgia’s death row for nearly 30 years. Last week, however, the U.S. Supreme Court finally saw through what Chief Justice John G. Roberts Jr. bluntly called the prosecutors’ “shifting explanations” and “misrepresentations” about the reasons for striking blacks from the jury. “I felt like they discriminated against me,” Whitehead remarked last year on the day the Supreme Court heard arguments in Foster’s case. “After that,” Whitehead told a reporter for the Atlanta Journal Constitution, “I felt like I never wanted to be on a jury again because of the way I was treated.” Like so many Supreme Court decisions, Batson promises more than it delivers in actual practice  as Foster’s case vividly illustrates. Prosecutors circumvent the decision by proffering ostensibly race-neutral reasons for keeping people of the wrong race off the jury  most typically, African Americans summoned for the trial of a black defendant. Judges typically accept the explanations unless the prosecutor simply stretches credulity beyond the breaking point. Tellingly, the judge at Foster’s trial rejected the Batson claim at first without hearing from Lanier, who then asked to “perfect the record” by giving his supposed reasons. Lanier, now a private attorney in Rome, Ga., and Pullen, who resigned from a judgeship in the midst of an investigation for misconduct, passed the credibility test back in Foster’s trial and again in regular appeals and post-conviction challenges. Two decades later, however, Foster’s new lawyers used Georgia’s freedom-of-information law in 2006 to obtain documents from the case file with damning and irrefutable evidence of what Roberts called the prosecutors’ “persistent focus” on race in the jury selection process. The jury selection notes prepared by the DA office’s investigator Clayton Lundy identified African Americans in the jury pool by the initial “B” and listed Garrett, Eddie Hood, three other African Americans and one white prospective juror as “definite NO’s.” One of the African Americans was excused for cause, but the prosecutors used their peremptory challenges to get rid of Garrett, Hood, and the other two  the only blacks in the pool of 42 qualified jurors. Lanier offered a bunch of race-neutral reasons for excluding Garrett and Hood. At length, Roberts shows in the Supreme Court’s nearly unanimous opinion that Lanier’s justifications were simply false  flatly contradicted by the record. Lanier said he excluded Garrett because she was divorced and, at age 34, too young. Yet Lanier accepted three white jurors who were divorced and two white jurors were younger, one of them age 21. Roberts stops just short of saying that Lanier lied. “Much” of Lanier’s reasoning, Roberts writes, had “no grounding in fact.” Lanier objected to Hood because he had a son around the same age as Foster, but white jurors with sons the same age were accepted. Lanier also viewed Hood, a member of the Church of Christ, as likely to share that church’s supposed reservations about the death penalty. But the church actually had no formal position, and Hood had repeatedly said he could consider imposing the death penalty. Again, Roberts concludes that Lanier’s “true motivation” for excluding Hood was Hood’s race. When the jury selection notes surfaced, Lanier and Pullen did their best to dismiss their significance: not our handwriting, they said. Whatever, Roberts said. The notes were written by someone in the prosecutor’s office, he concluded, and clearly used to guide Lanier’s use of peremptory challenges. Court decisions about prosecutorial misconduct often omit the names of the errant prosecutors. Given the disputed factual circumstances, Roberts perhaps had no choice but to name names in this instance. Even so, the roles that the much younger Lanier and Pullen played in tainting a criminal trial appear to have drawn less attention in Georgia than they deserve. In an alternate legal system, bar disciplinary authorities would now take the Supreme Court decision as the basis for opening ethics investigations, even if belatedly. Foster had confessed to the killing; his main defense was what is now called intellectual disability. It is open to question whether one or two black jurors would have changed either the verdict or sentence. But, as Roberts bluntly concluded, “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The case now goes back to a Georgia court system that failed in its constitutional duty before, now with a chance to show a higher regard for racial justice than shown in the past.

Sunday, May 22, 2016

However improbable it may seen, Donald Trump has a problem with conservative Republicans who apparently worry less about his demagogic presidential campaign than about his suspect conservative bona fides. The presumptive Republican presidential nominee took one step toward neutralizing that problem last week [May 18] by offering a sop to conservatives: a list of 11 certifiable conservatives as potential Supreme Court nominees in a Trump administration. Trump raised expectations weeks ago by promising that he would pick a qualified candidate if he gets the chance to fill the current unfilled vacancy left by the death of the iconic conservative justice Antonin Scalia. The venerable conservative magazine National Review tweaked Trump by criticizing his “worrisome” delay in listing possible Supreme Court nominees. Trump put out his list of “representative” contenders later the same day. To be sure, none of the 11 is laughably unqualified to serve on the Supreme Court, belying the satirical prediction from the longtime political observer Norman Ornstein that Trump might choose Judge Judy for the bench. Instead, all 11 are sitting judges: six of them on federal courts of appeals, all appointed by President George W. Bush; and five others on state supreme courts, all appointed by Republican governors. Conservatives were generally encouraged, though some were wary. Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said all of the potential contenders have “a record of putting the law and the Constitution ahead of their political preferences.” Ed Whelan, a legal commentator and former Scalia law clerk, praised the list in comments to The New York Times but questioned whether Trump could be counted on “to pick folks like this” if actually in office. Liberal advocates voiced alarm. Nan Aron, president of the Alliance for Justice, collectively labeled the people on the list as “extremists.” In a quickly assembled report on the federal judges, the Alliance said they represented “a right-wing ideology that threatens fundamental rights and that favors the powerful over everyone else, especially individuals from historically marginalized communities.” Geographically, those on the list represent the American Heartland, with no one from either the Atlantic or Pacific Coast or Inside the Washington Beltway. Tellingly, none graduated from Harvard Law School. Eight are men, three are women, and, most significantly, all are white. The Alliance’s report and quick research by others help confirm the federal judges’ conservative bona fides. William Pryor Jr., an Alabaman serving on the Eleventh Circuit, once called Roe v. Wade one of “the worst examples of judicial activism.” The Times notes that Raymond Gruender, a Missourian on the Eighth Circuit, authored a split decision upholding a South Dakota law requiring doctors to inform a woman that abortions “terminate the life of a . . . living human being.” Gruender’s Eighth Circuit colleague Steven Colloton, an Iowan, was part of the only federal appeals court panel out of nine to rule against the Obama administration’s plan to accommodate objections from religious nonprofits to providing contraception coverage for students and employees. Diane Sykes, a Wisconsian on the Seventh Circuit, is cited by the Alliance for upholding her state’s voter ID law and striking down Chicago’s handgun ban  positions eventually vindicated by the current Supreme Court. Thomas Hardiman, a Pennsylvanian on the Third Circuit, showed his Second Amendment bona fides by dissenting from a decision upholding a New Jersey law requiring applicants for a public-carry permit to show a “justifiable need” for the authority. Michigander Raymond Kethledge on the Sixth Circuit is marked down for upholding a law from his state prohibiting public schools from using payroll checkoffs to collect union dues from teachers. Among the five supreme court justices, the best known is the Texan Don Willett, who has attracted more than 45,000 followers to his Twitter account with often whimsical tweets, including some mocking slights about Trump. Willett has a following among legal conservatives for openly espousing libertarian sentiments that hearken to the anti-regulatory jurisprudence of the Lochner era. When the Texas Supreme Court struck down a state licensing scheme for eyebrow threaders, Willett wrote a concurring opinion that espoused what he called “the unalienable human right to pursue happiness without curtsying to government on bended knee.” Damon Root, senior editor of the libertarian magazine Reason, called it “perhaps the most libertarian legal opinion ever written.” The other state justices on the list are Colorado’s Allison Eid, Michigan’s Joan Larsen, Minnesota’s David Stras, and Utah’s Thomas Lee. The Alliance pleaded no time for research on the state justices; Larsen has been on the bench only nine months. But all clerked for conservative justices: Larsen for Scalia; and Eid, Lee, and Stras for Clarence Thomas. Among the federal judges, Colloton clerked for the late chief justice William H. Rehnquist and Kethledge for the moderate conservative Anthony M. Kennedy. The Trump list contrasts sharply with the current Supreme Court nominee, the veteran federal appeals court judge Merrick Garland. Trump’s candidates lack Garland’s long experience and, more significantly, any indicia of appeal across the ideological spectrum. “I would be surprised if there are any Democrats who would describe those individuals as ‘consensus nominees,’” White House press secretary Josh Earnest said. Trump had a different purpose in mind. He needed to find something to give to his conservative doubters: the promise of a Supreme Court seat as a political sop.

Sunday, May 15, 2016

Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision. Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles  sentences ruled unconstitutional by the Supreme Court four years ago. The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended. Four months later, Douglas Berman, a professor at Ohio State University’s Moritz College of Law and leading expert on sentencing policy, says he knows of no prisoner yet who has been released as a result of the Supreme Court decision. In Louisiana itself, Montgomery’s lawyer is waiting for the Louisiana Supreme Court to act on his motion to remand the case to a trial court for further proceedings. The state justices may be awaiting developments in the state legislature. The Louisiana Senate voted 25-8 on Thursday [May 12] to approve giving so-called “juvenile lifers” a chance for parole after 35 years in prison if they had no disciplinary offenses for the previous year and had participated in education and skills training programs. A House committee approved a similar bill the day before. The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release. The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases. In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.” Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.” Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions. But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom. Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards. But Berman, who publishes the comprehensive blog Sentencing Law and Policy, notes that parole boards still give an inmate a “second bite at the apple” if a judge does not grant the inmate freedom. One Louisiana case suggests that Renwick may be overestimating judges’ receptivity to lowering sentences for juvenile lifers. In March, Criminal District Court Judge Byron Williams in New Orleans imposed the same life-without-parole sentence that Jeremy Burse had received three years earlier after being convicted in a 2010 robbery-murder committed when he was 15. Williams presided over a so-called Miller hearing that lasted more than five hours and then concluded that Burse’s offense still qualified for the most severe penalty possible. “[T]his court believes that when anyone picks up a gun, they should assume the consequences of that action,” Williams said, according to the Times-Picayune’s March 13 story on the case. Berman notes that one unsettled issue is whether judges or juries will decide new sentences for juvenile lifers. He says that the court in its earlier decision, Miller, appeared to favor judicial discretion, but that the new decision may require juries. In a line of cases beginning with Apprendi v. New Jersey (2000), the Supreme Court has generally required juries rather than judges to make any factual findings needed to raise a defendant’s sentence above the minimum prescribed by law. Berman sees Kennedy’s opinion in Montgomery as requiring proof of “irreparable corruption” before a life-without-parole sentence. “Montgomery seems to indicate that it’s not a procedure that’s important,” Berman says. “It’s actually a substantive conclusion.” Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share. In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act. “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office. Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up. “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says. For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether. “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”

Thursday, May 5, 2016

Senate Republicans are still refusing to do their job in the Supreme Court confirmation process nearly three months after Justice Antonin Scalia’s death. But the nonpartisan Congressional Research Service (CRS) is not shirking its responsibility to evaluate federal judge Merrick Garland as President Obama’s nominee to fill the vacancy on the high court.
Scholars in CRS’s American law division took on the daunting task of synthesizing and evaluating Garland’s opinions and votes in 19 years on the federal court of appeals for the D.C. Circuit. The 81-page report, completed on April 27 and circulated earlier this week, is a model of CRS’s highly regarded work as the Library of Congress’s research arm for congressional offices.
The report opens with an overview of Garland’s record and reputation and follows with an exploration of specific subject areas, all thoroughly documented with more than 600 small-print footnotes. The report is neither puff piece nor hatchet job and makes clear at several points that Garland, if confirmed, would be a different justice from Scalia.
With that said, CRS’s verdict is clear even after the scholars acknowledge the hazards of predicting a justice’s future even with a long record on the bench beforehand. Garland, they write, “has been widely viewed as a meticulous and cautious jurist, writing with precision and an eye toward ensuring that the court does not overreach in any particular case.”
In the same vein, the CRS scholars say that Garland has a “minimalist approach to judging” along with a seeming aversion to unnecessary disagreements with his fellow judges. He has dissented infrequently, they write, on average less than once a year.
As further evidence of his judicial collegiality, they cite three cases in which Garland authored unanimous opinions for ideologically diverse panels on hot-button legal issues, including campaign finance. “Judge Garland’s ability to garner unanimous opinions in such cases . . . may demonstrate his willingness to prioritize collaboration above ideological rigidity in his work,” the scholars write.
Even without getting into specific subjects, Garland’s record in that regard suggests one major difference from Scalia. Whatever else may be said about his tenure, Scalia clearly preferred his own views of the law to any different views of his colleagues. He compromised rarely, wrote separately often, and, as a result, authored relatively few noteworthy majority opinions under his name given his 29 years on the court.
Garland’s record at the Supreme Court is better than average for lower federal courts. The high court has issued full opinions in only nine cases in which Garland has participated. In five of those, the justices agreed with the position Garland took. Comparatively, the court reverses about two-thirds of the cases it reviews with full opinion.
Interestingly, one of the decisions Garland participated in that the Supreme Court reversed was the first of the high court’s Guantanamo decisions, Rasul v. Bush (2004). Garland joined the unanimous three-judge panel in following an old precedent to rule that federal courts had no authority to review the detention of foreign combatants at Guantanamo. The Supreme Court voted 6-3, over a dissent by Scalia, to reverse course and allow habeas corpus suits by the Guantanamo prisoners.
The CRS report delineates several differences between Garland and Scalia while conceding that in some areas Garland’s views are simply unknown because he has not had cases posing those issues. The blank spots include such important areas as constitutional civil rights law, abortion, and freedom of religion.
On the important jurisprudential issue of statutory construction, Garland is a contrast to Scalia’s self-proclaimed commitment to strict textualism, with scant if any attention to legislative intent and none to legislative history. Garland has no “overarching” approach to statutory interpretation, the report says, but he appears to consider “multiple factors, including the text, structure, context, and history of specific statutory provisions.”
In civil litigation, Garland is likely to be “more hostile” to business interests and more receptive to the plaintiffs bar than the conservative Roberts Court majority that Scalia helped form and in several cases led. On federalism issues, Garland is seen as having “no inclination to narrow Congress’s authority” vis-à-vis the states  again in contrast to Scalia’s views. Garland may have a broader view of substantive due process than Scalia even though he joined an opinion rejecting a patient’s use of the doctrine to claim a right to use experimental drugs.
Garland’s unanimous en banc opinion upholding a ban on campaign contributions by federal contractors suggests he is unlikely to join the Roberts Court majority in cutting down campaign finance regulations. Garland’s critics view him as a likely naysayer of another Roberts Court initiative: the Second Amendment gun rights decision in Heller, authored by Scalia. The CRS scholars acknowledge that Garland voted at the D.C. Circuit to rehear the panel’s decision in that case striking down the District of Columbia’s handgun ban, but they the vote as little evidence of Garland’s view on the issue.
The CRS report confirms the dominant picture of Garland of a moderate consensus-builder that has emerged since his nomination. It also shows that a confirmation hearing has much to explore, and the public much to learn, from his televised testifying from the witness table. Despite their public stance, the Senate Republicans’ refusal to convene such a hearing is preventing the American people from having a voice in who the next Supreme Court justice will be.

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About this Blogger

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

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